Consultation Paper on the General Law of the Landlord and Tenant

4.14 Section 17 also recognises the common law rule that theright of removal cannot be invoked unless it can be exercised withoutcausing “substantial damage” to either the demised premises or theitem being removed. 31 The section does, however, recognise that inother cases exercise of the right may cause some damage to thedemised premises, hence the provision for “reasonable compensation”to be paid to the landlord. The Commission is not convinced that thisapparent distinction is entirely clear and inclines to the view that,subject always to the terms of the lease or tenancy, the statutoryprinciple should entitle the tenant to remove property installed by himor her on the demised premises in all cases, subject to the landlord’sright to compensation for any damage, however substantial, caused tothe premises by the removal.4.15 Section 17 also seems to recognise the common law rulethat the tenant had to exercise the right of removal during or at theend of the tenancy. 32 There is no Irish authority to indicate whetherthe courts here would accept the English courts’ development of thedoctrine of an “excrescence of the term”. According to this a tenantmay be permitted a “reasonable time” for removal of fixtures after thenatural expiry of the tenancy. 33 Section 17 seems to rule this out, 34 butit does allow for the exception where the determination of the tenancyis unexpected owing to the happening of an uncertain event and notdue to the act or default of the tenant. In such cases it gives the tenantan additional period of two calendar months in which to remove the31323334accepted that the concept of tenant’s fixtures applied to other relationships;in that case the company in question occupied the premises under acaretaker’s agreement. This point is outside the scope of the <strong>Consultation</strong><strong>Paper</strong>, which is confined to the relationship of landlord and tenant.See the discussion in Lombard and Ulster Banking Ltd v Kennedy [1974]NI 20. See also the views of the House of Lords in Leigh v Taylor [1902]AC 157 and Elitestone Ltd v Morris [1997] 2 All ER 513.See the views of the old Court of Common Pleas in Deeble v McMullen(1857) 8 ICLR 353.See Mackintosh v Trotter (1838) 3 M & W 184; Re Lavies (1877) 7 Ch D127.But this raises the question whether it should be regarded as displacing thecommon law: see Cherry Irish Land Law and Land Purchase Acts 1860-1901 (3 rd ed John Falconer 1903) at 45-46; Deale The Law of Landlord andTenant in the Republic of Ireland (Incorporated Council of Law Reportingfor Ireland 1968) at 17-18. See paragraph 4.11 above.80